"Devolution and the Union" - The Annual Conservative Political Forum Swinton Lecture, Conservative Party Conference, October 1999


Introduction

Mr Chairman, I entirely endorse your comments both about the potential that the Belfast Agreement has for the people of the whole of the British Isles and about the absolute need to maintain the democratic principle. We cannot allow those with private armies to use their forces to secure for themselves a privileged position at the centre of power. That is something about which we feel very strongly indeed.

But I do not intend this evening to concentrate exclusively on Northern Ireland. I would like to take a step back and offer some reflections on the recent constitutional changes that the United Kingdom has been experiencing.

Those changes have come about in two different ways: through the incorporation into domestic law of the European Convention on Human Rights; and through the devolutionary proposals that this Government has implemented in Wales and Scotland and which may still be implemented in Northern Ireland. These two developments have brought quite substantial and serious changes to our constitution. I would like to reflect a little on them.


European Convention on Human Rights

I shall not talk at length about the European Convention on Human Rights (ECHR) because it has affected the United Kingdom for quite some time. From the moment many years ago when the Government accepted the right of individual application to the European Court, the European Convention became, in effect, a Bill of Rights for the UK. All that will change as a result of the incorporation of the Convention into domestic law is that this “Bill of Rights” will become more easily enforceable by our citizens against public bodies here.

There is an awful lot buried in that little phrase. Simply by virtue of being more easily enforceable, the ECHR will have quite a significant effect on the way things are done. I personally regard most of the changes that will probably flow from it as likely to be good.

I do, however, have concerns about how we can secure changes to the Convention and about how we deal with situations where the European Court makes what we may think is the wrong decision. I certainly know of cases relating to Northern Ireland where poor decisions were made. It is essential that the personnel appointed to any human rights commissions have a broad experience of public life and of the issues that arise there and are not drawn exclusively from what might be called the “human rights industry”.


Devolution

I want to concentrate on devolution as it affects the UK and the concern that a number of people have had with regard to it. When the Labour Party came forward a few years ago with proposals for devolution for Wales and Scotland there were many people, particularly Conservatives, who were deeply concerned. They were worried about the effects that devolution would have on the UK as a whole.

I remember well - and I am sure you remember, too - John Major's impassioned statements during the 1992 General Election when he drew attention to what he regarded as the danger of devolution - the danger that devolution could lead to the break-up of the UK. Now I think there was a mistaken assumption in what he was saying - the proposition that there is something about devolution which necessarily of itself will lead to the fracturing of the United Kingdom. It is that proposition that has to be examined and looked at carefully.

There were also concerns about the asymmetrical nature of devolution. Some parts of the Kingdom would have devolution, but not others. In my view, this is a lesser concern, but I want to deal with it as well.


A threat to the Union?

In my view, the belief that devolution would automatically lead to the Union being threatened is based on two misconceptions. The first misconception is the view that the state we inhabit is an unitary state. There was a time when any constitutional text book or any political science text book would refer to Britain as a unitary state. In fact, it is not and it never has been.

It is necessary to reflect on our constitutional and political history. Usually it is the continuity we stress. In that there is still a validity of the old starting point of 1066 and all that. The Normans did introduce a political culture that did spread over all of the British Isles. But for our present purpose we need to remember the considerable variety that also existed within and alongside that common political culture. There may always have been an England. But this should not blind us to the fact that England has not been the whole picture. It is a part of the picture, albeit it the biggest part. Alongside England there has been Wales, Scotland and Ireland, themselves often divided into other units. These various parts have coalesced first as Great Britain and latterly as the United Kingdom, although the latter has taken two distinct forms, but the various parts have never wholly lost their own identities within the thousand year continuity we rightly cherish.

It is true that for some part of the UK's existence there has been only a single Parliament. There was a single Parliament in the UK from 1801 to 1921 and again from 1970 until this year. But for the rest of the time there has been more than one Parliament. For all of the time from the founding of what we might call the British state until 1800 there were different elements within it.

This requires us to look back at the legal and political evolution of the UK. The UK comes from three separate kingdoms - the Kingdoms of England, Scotland and Ireland. Scotland was wholly independent until 1707. The union of crowns came about in 1603 but the union of the countries did not come until 1707. Ireland, too, was a separate Kingdom until 1801. Admittedly that Kingdom was not entirely sovereign, the Crown of Ireland, and before it the Lordship of Ireland, was dependant on the Crown of England, but Ireland had a separate Parliament, a separate legal system, and a separate administration.

So we had three separate Kingdoms with separate legal systems and separate administrative systems. Until the unions of 1707 and 1801 there was extensive administrative and legislative devolution. In some cases, there was a measure of legislative independence as well.

The only part of the British Isles ever to be totally integrated with England was Wales, which was integrated in the 16th century. Even here, administrative devolution has developed in the course of the last 100 years. Indeed, in the course of the last 150 years the degree of administrative devolution with regard to Scotland and Wales has increased. So I think that it is wrong to suggest that the British state was ever a unitary state. It never was.

The second misconception is that there is something about devolution that inevitably leads to conflict between the devolved administration and the government and legislature at Westminster. This ignores the experience of Northern Ireland. There was devolution for Northern Ireland, a separate Parliament together with a separate Government was created by the Government of Ireland Act 1920, with extensive powers actually transferred in late 1921 and 1922. Yet the existence of a separate Parliament and Government did not lead to Northern Ireland leaving the Union.

There were disagreements between the Northern Ireland Government and the UK Government, some of them serious. In 1922, when the Stormont administration wanted to change the law with regard to local government, the Government at Westminster tried to prevent it. Indeed it got to the point when the then Prime Minster of Northern Ireland, Sir James Craig, said to the Government in London that, if the interference continued, the Northern Ireland administration would resign and provoke a constitutional crisis. At that point the UK Government sought legal advice and the Law Officers in London told the Lloyd George Government that Stormont was sovereign within the terms of legislative powers devolved to it under the Government of Ireland Act 1920.

This advice may seem rather quaint to us today. The same terminology, however, had been used in the 1920 Act to empower Stormont as was used to confer legislative and governmental powers upon Canada, Australia and South Africa, namely, the power to legislate “for peace, order and good government”. So in 1922, at a time when the distinction between devolution and dominion status was not clear, there was a view that Stormont was sovereign within certain areas.

But despite the conflict that arose over local government in 1922, devolution, despite the conferment of a degree of regional “sovereignty” to Stormont, devolution did not lead to separation. Indeed, if anything, the relationship between Northern Ireland and Great Britain got stronger since 1922 through the evolution of what was called in Northern Ireland the policy of 'step by step'.

The key to understanding policy comes in the attitudes of Sir James Craig himself. This was clearly demonstrated in November 1921, after the enactment of the Government of Ireland Act, but before devolution took effect, in an exchange between Craig and Lloyd George. This occurred at the time of the negotiations between Lloyd George and the IRA or Sinn Fein, negotiations which lead to the Treaty creating the Irish Free State. At one stage, Lloyd George tried to persuade Craig to accept an all-Ireland state. Stormont would continue subject to Dublin's Government and Parliament. Craig's response was to say that, if that was the Government's wish, then Northern Ireland would prefer to be independent - to be separate from, but on a par with the new Irish state.

He then wrote to Lloyd George that,

“if you force Ulster to leave the United Kingdom, against the wishes of her people, she desires to be left in a position to make her own fiscal and international policy conform as nearly as possible with the policy of the Mother Country, and to retain British traditions, British currency, British ideals and the British language, and in this way render the disadvantages entailed by her separation from Great Britain as slight as possible.”

So the really important thing in his mind and in the mind of his administration was that, whatever the form, whatever the structures, it was their intention to remain as close as possible to the rest of the UK and to frame government and administration on that basis. That is what we call the 'step by step' policy.

If you reflect on it, there is no inevitability of conflict between a local parliament and a national one. Most other countries of the same size as the UK - and all bigger ones - have extensive federal systems or systems of devolution. The states in the USA have different legislatures and administrations, but these structures do not necessarily lead to separatism. The example of Northern Ireland shows that the policies of those participating in the devolved institutions are more important than the fact of their existence. But opponents of devolution say that Ulster was different, that they fear that in Scotland particularly, and maybe even in Wales as well, devolution will bolster nationalists.


Does devolution bolster nationalism?

So why then has there been here a fear of devolution and a fear of it leading inevitably to separatism? I think there are two possible reasons. One is the rarely expressed assumption that the UK is not really as united as it seems - that nationalist feelings exist which, if expressed, will give rise to the sort of antagonism that has existed between Irish Nationalists and the people of Britain. There is an unspoken assumption that, if one recognises the existence of Welsh and particularly Scottish nationalism, this will build up national feeling to a point at which antagonism develops.

Now I do not think that proposition is true - simply because we now have the experience of centuries of living and working together and of people moving from one part of the UK to another. There are very few people in Wales, Scotland or Northern Ireland who do not have close relatives living in other parts of the UK. That may not be true to the same extent for people in England but it is certainly true of people outside England. So I do not think there is the scope for the sort of nationalist antagonism that some people expect.


Parliamentary sovereignty

The other reason for the belief that somehow there will be an inevitability about the rise of separatism, stems from a view of Parliament which I also regard as flawed. This is called the concept of Parliamentary Sovereignty.

It is usually lawyers who are the strongest advocates of the concept of Parliamentary Sovereignty. I tend to the view that lawyers particularly have made a mistake about this concept. The concept is normally expressed in the terms that Parliament cannot bind itself - that no limit can be set on the power of Parliament and that any attempt to bind parliament will be ineffective. Now if that is a characteristic of Parliament then you cannot have more than one parliament in any one territory, because if Parliaments' powers are boundless and you have more than one within the same state, then there is an obvious problem.

But this concept is one developed by lawyers and academics. If you look at what has happened in practice you see something quite interesting and somewhat different. If we look at the Treaties of Union, either the Scottish or Irish Treaty of Union, we see that what happened in both cases was that first there was a treaty between the two Parliaments. For example, in 1706/7 there was a treaty between the Parliament of Scotland and the Parliament of England. This one treaty was followed by two Acts of Parliament whereby each Parliament voted itself out of existence and transferred some functions to a new Parliament. In these Acts each outgoing Parliament, the English and the Scottish, purported to impose limitations on the powers of the new Parliament that was being called into existence. Those Parliamentarians clearly believed that it was possible limit the powers of the new Parliament that they were calling into existence.

The same thing happened in 1800/1801. There was a treaty entered into between the Parliament of Great Britain and the Parliament of Ireland, there was an Act of Union in Dublin and there was an Act of Union in London. Both Acts purported to create a new Parliament called the Parliament of the United Kingdom of Great Britain and Ireland. The Irish Act and the British Act both purported to impose limitations on the powers of the new Parliament. They went as far as they possibly could to impose limitations on the powers.

Now theorists have dismissed this. There is a lovely quote from Maitland in his Constitutional History of England with regard these limits on the power of the Parliament of Great Britain,

“The fundamental and essential character of these provisions is insisted on with so much emphasis that we may say that the act goes near to an attempt to make law which no future parliament shall alter – goes near to such an attempt, but is not definitively guilty of it.”

He gives as authority for his verdict a quotation from Blackstone’s Commentaries. He might also have added that these fundamental provisions have in fact been changed. But Parliament’s actual practice on this is interesting. Certainly as regards Scotland, Parliament has respected the limitations in the Acts of Union. Parliament has not in fact acted as though it is capable of doing anything and unilaterally disregarding the Acts of Union. That Act of Union expressly recognises the position of the Scottish Church, Scottish education system and the Scottish legal system. Parliament has been very careful in its handling of these issues to keep within the spirit of the Acts of Union. It did change the status of the Professors of Scottish Universities, who originally all had to be members of the Church of Scotland, but it did not do so without first consulting the relevant parties in Scotland to see whether it would be acceptable. There was an attempt in the middle of the latter part of the 19th century to change the legal system insofar as it was going to create a new Court of Appeal in England. The proposal was to remove the powers from the House of Lords to a new Court. But London dropped the matter when it was realised that this would involve a breach of the Act of Union. So, in fact, Parliament respected the limitations that were there.

The situation in Ireland is not quite so straightforward because obviously the Union that was said to be forever was modified in 1922 when 26 counties seceded to form the Irish Free State. Of course, even though the Act of Union was intended to be forever, nothing is immutable. The question is what is the mechanism for change? In this case, the mechanism for change actually adopted in 1921 followed closely the procedures that led to the creation of the Union. The Act creating the Irish Free State followed a treaty between the representatives of the Westminster Parliament and those of an elected body in Ireland. The latter may have been formed in a somewhat irregular manner, but it clearly was, on the matter in hand, representative of the people of the 26 counties. As with changes to the Scottish Union it was, on that occasion, established that the changes were acceptable to the people concerned.

It is, of course, an important part of our complaints that recent British Governments, particularily Conservative governments, have acted unilaterally to alter our constitutional position without our consent, both in the abolition of Stormont and in the imposition of the Anglo-Irish Agreement of 1985. It may be possible to distinguish these from the letter of the Acts of Union, but not from their spirit. Thankfully in more recent times all parties in London have realised the primacy of the consent principle.


Practice more important than constitutional theory

There is an important point here - that constitutional provisions, whatever else is written on paper and however it is said they should be interpreted, what people actually do in practice is more important than the formal position. Again, this is a view that is hardly popular amongst lawyers, but I think it is an important one. Irrespective of what the written form of a constitution may be, what is actually done in practice is more important. If the constitution does not reflect the nature of a society and the particular balance of forces within it, then the constitution will not be effective.

There are two very nice examples of this from the island of Ireland. The first means going back to the 1920/21 legislation that created Stormont and the Irish Free State. That legislation, which came from the UK, imposed limitations upon the subordinate legislature in Stormont. One of those limitations was that Stormont would not have the power to endow any religion. It was a clause intended to prevent religious discrimination.

Now that phrase about not endowing any religion is in fact the same phrase that was used in one of the amendments to the constitution of the United States. There it resulted in complete separation of Church and State, driven through by judicial decisions to the point that there was legal controversy over the saying of prayers in school, since this activity was seen as endowing religion.

But what happened in Northern Ireland? Well Stormont did not directly endow any religion until the 1 940s when the Butler Education Act 1940 was passed (in England and Wales) and the Law Officers of Northern Ireland got worried that the new legislation would contravene the constitutional provisions by requiring Stormont to make grants to Church Schools. So the Northern Ireland Attorney-General came over to London to consult with the Home Secretary to see whether they could change the Government of Ireland Act 1920 to allow grants to be paid to Church schools.

The attitude of the Home Secretary was very interesting He said he could see that there was a potential constitutional problem, but advised that they go ahead and do it anyway. If there was trouble with the courts, he said, then he would help. This supposedly 'unconstitutional' law, was enacted in Northern Ireland in 1947 and remained on the statute book unchanged until the 1970s without anybody ever bringing a case under it. So, in practice, we had an unconstitutional arrangement which everyone accepted in practice, certainly nobody did anything about it. Mind you this unconstitionality was not generally known until my academic and political colleague, Edgar Graham published the papers relating to it. Edgar was murdered by the IRA in 1982.

It is even more interesting that the same provision about not endowing any religion was carried forward from the 1920 Act into the Article 16 of the Treaty that created the Irish Free State. When De Valera came to create his 1937 Irish constitution he copied it too, although he tucked it away at the end. The Republic of Ireland, as it subsequently became, handed over virtually all of its educational and health sectors to the Church. The Irish Government hands over huge sums of money each year to the Church to run its schools and hospitals. Strictly speaking, all of this is unconstitutional, since it is clearly endowing religion, in defiance of constitutional clauses which, in the USA, have led to a complete separation of Church and State.

So here we have a case where, in three different constitutional settlements (USA, Northern Ireland and Republic of Ireland), the same phrase in constitutional law has given rise to three completely different consequences.

The conclusion is simple - what is on paper is less important than what people actually do in practice. This is particularly important in the UK, where we do not have a formal constitution. This informality is fine while people act with a knowledge of the nature of the UK. Across, England Wales, Scotland and Northern Ireland we have three different legal systems, three or four different forms of national identity - if not more. That arrangement worked perfectly well for many years because those who governed the UK were aware of the variety of that existed within it and aware of the network of treaties and understandings that underlay the UK. But in the last 30 or 40 years the arrangement has not worked so smoothly. Why not?


The last 40 years

In my view, one of the reasons why our constitutional arrangements have not worked so smoothly in the recent past is that, over the last 30 or 40 years, the UK has been run by people who believed the textbooks when they said that the UK is a unitary state. They thought that the sovereignty of parliament meant that Westminster could enact whatever it liked and impose it on any part of the UK, irrespective of what the consequences might be. Therefore, they disregarded that network of treaties and understandings that underlay the existence of the UK.

I have sometimes said that this is a consequence of the rise of the grarnmar school boys. In earlier days, the landowning classes actually knew from their own experience and from their own families of the variety that actually existed within the UK. But the people whose knowledge of the UK came largely from books did not handle relations between the constituent elements of the Kingdom as well. You have seen the same problem with regard to attitudes to Scotland and the problems which have arisen there from the insensitivity of London Ministers. So I think it is important not to be taken in by legal formalisms and legal theories about the operation of the constitution. There are other things that are much more important in practice.


Finance the key

Stormont had wide powers of administrative and legislative devolution. I have mentioned the view in the 1920s that it had a degree of sovereignty. Indeed that found its way into some legal commentary as well. I remember in my early political career having an argument with Bill Craig, a former Minister of Development and of Home Affairs in Stormont, who was then the leader of the Vanguard Unionist Party. He got down the Northern Ireland Legal Quarterly and quoted an article on the Northern Ireland constitution to support the view that Stormont had a degree of sovereignty. The author was arguing that Westminster’s overriding powers, mentioned in section 75 of the 1920 Act could not be used in practice. A view supported by the experience of the local government act crisis in 1922. In fact, the reality was different and the power had been used without any legal impediment in 1972. Stormont's capacity to operate independently declined from 1920 to 1970 for a simple reason - its financial powers were extremely weak. It had no real fiscal power at all and consequently was dependent on financial transfers from London.

I also remember Professor Tom Wilson, who was appointed in 1965 by the Stormont government to draw up an economic report telling me that his appointment was held up for three months while Stormont sought Treasury approval for paying him a modest honorarium. So nothing happened without Treasury approval - right down to the smallest detail. This point is important with regard to Wales and Scotland. The Prime Minister may have been undiplomatic when he said that the Scottish Parliament would not be much more important than a Parish council in England and Wales. But there was an element of truth in what he said.

Financial relationships become important when we look at the West Lothian question. In my view, the West Lothian question does not give rise to any problem at all. At the heart of the matter is the principle of no taxation without representation. Taxation is levied from London uniformly throughout the UK, so therefore there has to be uniform representation there.

Through the block grant system the regional administrations may have a little more power that Stormont when it appoint Professor Wilson in 1965, but they cannot adopt whatever policy they wish. The Barnet Formula used for funding the devolved institutions in Wales, Scotland and Northern Ireland, does not as some assume give the regions more money than England. Barnett does recognise historic regional disparities, but provides that the regions merely get a per capita equivalent of any increase in spending on programmes in England where there are comparable programmes in the regions.

It is the policies and the spending programmes which are adopted in England that determine the finance for the regions. Moreover through the undefined concept of comparable programmes the regional administrations may find themselves bound by major policies made in London. So, however much the regions might wish to pursue independent policies, they will be financially constrained in so doing. They may be able to do things around the margins but they may not be able to take decisions on the central policy issues. Scotland has a modest power to vary taxes, although I wonder whether it will be used and whether it will have any significant effect because it mounts to such a minor proportion of expenditure as a whole.

The power to raise and spend tax revenues is the key to political control, and that power remains with the centre in London. Consequently, whatever forms of devolution have already taken place, the power actually held by the regions is severely limited.


Unionism in the major Parties

I made the point with regard to Stormont that, because the Unionist administration was determined to remain part of the UK, they deliberately decided to frame their policies in those terms. We are now seeing the same thing happen with regard to parties in Scotland. The Labour Party until recently always had a crypto-nationalist element in its ranks. Prior to the elections in Scotland, Labour went to great lengths to marginalise this element. The battle against the SNP will turn Labour in Scotland into an unionist party - albeit with a small 'u'. There is a further reason why Labour will tend towards a unionist position - the dynamics within the Labour Party at regional and national level. Labour leaders in the centre will not be able to tolerate their own party having a different policy in the regions.

I suspect the Liberal Democrats will be subject to the same pressures. Either they will compete with the nationalists or they will follow them. If they compete with the nationalists then they will necessarily be moving to a unionist position.

This has important consequences for the tactics to be used in Scottish politics (and, to a lesser extent in Wales). If what I say about devolution compelling Labour (and, to a lesser extent, the Liberal Democrats) to become unionist in practice, then there is no particular merit in the Conservative Party in Scotland presenting itself as purely a unionist party. Of course, there is great merit in talking to people about the importance of the union, but being merely a unionist party pure and simple will not be sufficient to distinguish the Conservatives from Labour or the Liberals.

To test this argument out, let me argue against myself for a moment. You may recall that the last time the Conservatives won a majority of the seats in Scotland was when they called themselves Unionists. When the name changed from Unionist to Conservative, electoral fortunes declined. But the reason for this was that, in Scotland, a purely Conservative Party was seen to a large extent as an English party. When it was a unionist party it was seen as a British party and it is a matter then for Conservatives in Scotland and nationally to rediscover and re-emphasise a Britishness and I think that was then relevant not just to Scotland but to all parts of the UK as well. To go in the opposite direction and espouse an explicitly English position as against the devolved institutions will be to pose a greater threat to the Union that all of celtic nationalism put together.


Different forms of devolution

There is one question I have not yet touched on - does it make a difference if you have different forms of devolution in one part of the country compared to another? In my view, it does not. Given the fairly high degree of centralisation that we have in our fiscal and political systems then I do not see any difficulty in having some variation from region to region.

I notice that we are going to end up with what is largely a two tier system of local and regional government - although I do not pretend for a moment that this is anything other than a coincidence. In Wales and Scotland the Conservative Party anticipated devolution by reducing local government to a single tier - District Councils thus creating the space for a regional administration to come in on top. It may not have been intended but that is how it has worked out. If you look at England, in most areas we find two tiers again - District Councils and then County Councils above them.

So there is a degree of uniformity. If we have Mayors in London and other cities like that then we will get a two tier system again. So it is not as if an extra tier is being added; the tiers are simply being varied from region to region. The fact that some tiers may have more extensive legislative powers than others need not be a problem.

Indeed this variety of constitutional arrangements can be an advantage when you have different legal systems. Scotland has a different legal system, as does Northern Ireland. Both countries have always experienced great difficulty in getting enough time at Westminster to enact distinctively Scottish and Northern Irish law - as is necessary from time to time, if only from a law reform point of view. So while you have different legal systems then you do need to have some special legislative provision. But the important point is that while you have a high degree of fiscal integration then devolution is not a problem.


Benefits of political integration

There is one other factor as well which is very important. Great Britain has a high degree of electoral integration. Whatever the differences may be in terms of the administration of England as opposed to Wales and Scotland there is a single party system operating throughout. In Scotland there is a four-party system where you have one nationalist party and then the three national British Parties, Conservative, Labour and Liberal Democrat. It seems to me to be a healthy state of affairs.

The situation in Northern Ireland is not politically healthy. There we have accepted the nationalist frame of reference and our parties are divided into those which are nationalist and those which are unionist. The sole issue at stake is the national one. Contrast the situation in Northern Ireland with that in Scotland, where the party framework regards the nationalist issue as distinct because there is one separate party for that issue and three parties for normal politics. It is a much healthier state of affairs.

I think it is important that there is that degree of electoral integration. It did not exist in Northern Ireland from 1920 onwards because the political systems tended to diverge. This alone is a great problem. It meant that we had a political class that grew up in Belfast without any appreciation of the political situation in London. From the opposite perspective, we can see that the political class that grew up in London simply did not know what to do when Northern Ireland became an issue again in 1969. London-based politicians did not understand the situation. Mistakes were made on both sides

This is a serious problem. It needs to be addressed so that any centrifugal tendencies of devolution are counterbalanced by the forces of electoral integration. All this has consequences for the future politics of Northern Ireland and for the relationship between our parties. It is a huge question which I certainly cannot explore today.

Certainly, if we get over the immediate problems in Northern Ireland and if we get the local administration up and running then the issues that I have just mentioned will come very much to the fore. If we do succeed in establishing a regional administration in Northern Ireland, then I will very much want to see a healthy state of politics. By 'a healthy state of politics' I mean one where normal competition on social and economic issues takes place between parties of the left, right and centre, where we are not forced into debating a single national issue.

I see the Belfast Agreement as the basis for a transformation of Northern Ireland's politics. Once we have settled the constitutional issues then we can look forward to opening the door to more natural and more healthy politics. That is not today's issue. It is not at the forefront of the agenda today in Northern Ireland. But I very much hope it will be before long.


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